State of Indiana v. Norfolk Southern Railway Company
State of Indiana v. Norfolk Southern Railway Company
Opinion
ATTORNEYS FOR APPELLANT: Curtis T. Hill, Jr., Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Andrew A. Kobe, Larry D. Allen, Deputy Attorneys General, Indianapolis, Indiana
ATTORNEYS FOR APPELLEE: Raymond A. Atkins, Hanna M. Chouest, Sidley Austin LLP, Washington, DC, Bryan H. Babb, Bradley M. Dick, Bose McKinney & Evans LLP, Indianapolis, Indiana, John C. Duffey, Heather L. Emenhiser, Stuart & Branigin LLP, Lafayette, Indiana
ATTORNEYS FOR AMICUS CURIAE THE ASSOCIATION OF AMERICAN RAILROADS: Harold Abrahamson, Jonathan E. Halm, Abrahamson, Reed & Bilse, Munster, Indiana
ATTORNEYS FOR AMICI CURIAE FRANCIS P. MULVEY AND CHARLES D. NOTTINGHAM : Stephen J. Peters, David I. Rubin, Plunkett Cooney, P.C., Indianapolis, Indiana
ATTORNEYS FOR AMICI CURIAE INDIANA RAILROAD COMPANY ET AL.: Karl L. Mulvaney, Margaret M. Christensen, Nana Quay-Smith, Bingham Greenebaum Doll LLP, Indianapolis, Indiana
On Petition to Transfer from the Indiana Court of Appeals, No. 02A03-1607-IF-1524
Rush, Chief Justice.
*470 Indiana-The Crossroads of America 1 -is a railroad capital. Statewide, dozens of railroad companies run trains on more than four thousand miles of track. Roads intersect those tracks, creating 5,693 public railroad-highway grade crossings. That's one for every seventeen public-roadway miles-the highest concentration in the country. 2
To aid public travel, the State bars railroads from blocking those crossings for more than ten minutes, except in situations outside the railroads' control. Violations carry minimum $200 fines. After 23 citations, Norfolk Southern challenged the State's regulation as preempted by federal law.
This issue of first impression in Indiana raises two questions. Does the standard presumption against preemption apply in the railroad-crossing context? And to what extent has Congress kept the tracks clear from state regulation of rail transportation?
We hold that while the longstanding presumption against preemption applies here, Indiana's blocked-crossing statute is a remedy that directly regulates rail transportation and is thus expressly preempted by the Interstate Commerce Commission Termination Act.
Facts and Procedural History
Indiana's blocked-crossing statute bars railroads from blocking railroad-highway grade crossings
3
for more than ten minutes, except in circumstances outside the railroads' control.
Between December 2014 and December 2015, Norfolk Southern collected 23 blocked-crossing citations for violations near its Allen County trainyard. Norfolk Southern moved for summary judgment on the citations, arguing that the Interstate *471 Commerce Commission Termination Act ("ICCTA") and the Federal Railroad Safety Act ("FRSA") expressly preempt Indiana's blocked-crossing statute. It also designated evidence-undisputed by the State-that it faced a heavy compliance burden at grade crossings near the trainyard.
Based on that evidence, the trial court found that train-switching maneuvers, track congestion, and mechanical defects can all cause traffic blockages lasting more than ten minutes. It also found that, to shorten blockages, Norfolk Southern would have to run trains faster, run shorter trains, or "cut" trains into segments-an onerous process that requires more than ten minutes of reassembly and brake tests. The court then granted summary judgment for Norfolk Southern on all 23 citations, finding that both the ICCTA and the FRSA preempt the blocked-crossing statute.
The State appealed, arguing that neither federal act preempts Indiana's blocked-crossing statute, especially given the presumption against preemption. The Court of Appeals agreed, reversing the trial court because neither the ICCTA nor the FRSA explicitly list blocked-crossing statutes as preempted.
State v. Norfolk S. Ry.
,
Norfolk Southern petitioned to transfer, which we granted, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).
Standard of Review
Preemption here turns on whether federal law expressly preempts Indiana's blocked-crossing statute.
See
Kennedy Tank & Mfg. Co. v. Emmert Indus. Corp.
,
Discussion and Decision
Congress can preempt state law expressly, with explicit preemptive text, or impliedly, "under the twin doctrines of field and conflict preemption."
KS & E Sports v. Runnels
,
Norfolk Southern argues only that Indiana's blocked-crossing statute is expressly preempted. The statute's current version says:
It shall be unlawful for a railroad corporation to permit any train, railroad car or engine to obstruct public travel at a railroad-highway grade crossing for a period in excess of ten (10) minutes, except where such train, railroad car or engine cannot be moved by reason of circumstances over which the railroad corporation has no control.
I.C. § 8-6-7.5-1. State statutes like this one are ordinarily covered by a presumption against preemption,
see
Kennedy Tank
,
We disagree with Norfolk Southern and find at the outset that the presumption applies, given the State's legitimate interest in protecting the public use of grade crossings. With that presumption on board, we then address the ICCTA's express preemption provision. We conclude *472 that because Indiana's blocked-crossing statute provides a remedy that regulates rail transportation, the ICCTA expressly preempts it.
I. Federalism dictates that the presumption against preemption applies to the blocked-crossing statute.
As a concept "central to the constitutional design," federalism requires that we not find preemption easily.
Kennedy Tank
,
Since the presumption is animated by federalism, it "is not triggered when the State regulates in an area where there has been a history of significant federal presence."
United States v. Locke
,
So does the presumption against preemption apply in this railroad-crossing case, or does Locke 's exception derail it?
To start, we agree with Norfolk Southern that Congress comprehensively regulated the railroad industry dating back to the late nineteenth century.
See
United Transp. Union v. Long Island R.R.
,
Indiana has exercised that police power for over 150 years. In 1865, the legislature made it a misdemeanor to leave a train "standing across any public highway or street, to the hindrance of travel, for a longer time than ten minutes." Act of Dec. 20, 1865, ch. XXIV,
Norfolk Southern responds that even if the blocked-crossing statute has protected the public interest for a long time, it remains a direct regulation of railroad operations. This is a fair point-and one that headlines our preemption analysis below-but it does not undermine the presumption against preemption.
Rather, the presumption covers "subject[s] traditionally governed by state law."
CSX Transp., Inc. v. Easterwood
,
And because states have long regulated railroad crossings,
Locke
's no-federalism-interest exception does not derail the presumption here. Indeed,
Easterwood
applied the presumption to a railroad's tort duties at railroad crossings, confirming that these crossings have been "traditionally governed by state law."
See
Thus, under
Easterwood
, "[o]ur analysis begins with a presumption against preemption,"
Kennedy Tank
,
II. The ICCTA, by its plain language, preempts Indiana's blocked-crossing statute.
When Congress used the ICCTA to largely deregulate the rail industry, it included an express preemption provision to limit state involvement. That provision preempts state remedies that manage or govern rail transportation. We find that Indiana's blocked-crossing statute is such a remedy for two reasons. First, because its effects substantially interfere with railroad operations. And second, because ICCTA preemption is not limited to explicitly economic regulations.
A. The ICCTA's history informs its express preemption provision.
Over time, significant shifts have transformed federal regulatory control over interstate commerce. These changes provide essential context for the ICCTA's express preemption provision.
Federal regulation of interstate commerce began in 1887 when Congress established the Interstate Commerce Commission, the first independent federal agency.
Kennedy Tank
,
More recently, though, Congress came to view this scheme as an "onerous regulatory burden" that hindered railroads' economic competitiveness.
Friends of Eel River v. N. Coast R.R. Auth.
,
While Congress largely deregulated the railroad industry, it did not invite states to step in and fill the void.
See
Eel River
,
*474
Kennedy Tank
,
(b) The jurisdiction of the [STB] over-
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,
is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law .
Norfolk Southern argues that this provision preempts Indiana's blocked-crossing statute. Since it argues only express-not field or conflict-preemption, our task is statutory interpretation.
See
Easterwood
,
The ICCTA's preemption provision is two sentences.
See
B. The ICCTA broadly preempts state statutes that manage or govern rail transportation but leaves routine crossing matters to the states.
The preemption provision's second sentence specifies which state remedies are preempted: those "
with respect to regulation of rail transportation
."
Contrary to the State's argument, the phrase does not encompass only state remedies that are redundant of an ICCTA remedy. Instead, the preemption provision's clear text makes ICCTA remedies "exclusive."
But the preemption provision also does not encompass
all
state actions affecting railroad crossings. In fact, while "[s]ubstantial interference with railroad operations will be preempted; routine crossing disputes will not."
Franks
,
Many state actions, though, do regulate rail transportation and are thus preempted. Courts are unanimous that the test is whether a statute has "the effect of 'managing' or 'governing' rail transportation."
Delaware v. Surface Transp. Bd.
,
With this test in hand, it's full speed ahead to the ICCTA's application here.
C. The ICCTA expressly preempts Indiana's blocked-crossing statute.
Indiana's blocked-crossing statute says:
It shall be unlawful for a railroad corporation to permit any train, railroad car or engine to obstruct public travel at a railroad-highway grade crossing for a period in excess of ten (10) minutes, except where such train, railroad car or engine cannot be moved by reason of circumstances over which the railroad corporation has no control.
I.C. § 8-6-7.5-1. Again, the test for ICCTA preemption is whether this statute has "the effect of 'managing' or 'governing' rail transportation."
The broad definition of "transportation" in 49 U.S.C. section 10102(9) sweeps up "virtually any property, track, or vehicle 'related to the movement of passengers or property, or both, by rail.' "
Allied Erecting & Dismantling Co. v. Surface Transp. Bd.
,
But does that amount to "regulation" under the ICCTA's preemption provision? That is, does it rise to the level of " 'managing' or 'governing' " rail transportation?
*476
PCS Phosphate Co. v. Norfolk S. Corp.
,
1. Indiana's blocked-crossing statute regulates railroads.
The statute's bar on blocking grade crossings for more than ten minutes dictates key operational choices. Railroads cannot run trains too slowly or make them too long, lest they take more than ten minutes to clear a crossing.
See
CSX Transp., Inc. v. City of Plymouth
,
The facts here, as the trial court ably found, provide examples. Norfolk Southern's switching operations take more than ten minutes to safely complete. Mechanical defects and trainyard congestion can also cause violations. So Norfolk Southern would have to run faster or shorter trains, or "cut" trains into segments, to comply with the blocked-crossing statute. And if Norfolk Southern "cut" its trains to open the crossings, reassembly and mandatory brake tests would take more than ten minutes. All this means that Norfolk Southern-just to try to comply with the blocked-crossing statute-would have to change several key railroad-operation choices.
Nor does the statute's exception for blockages outside the railroads' control provide a light at the end of the tunnel. The statute's duty to clear crossings within ten minutes means that if there is any way for the railroad to comply-no matter how onerous-then it must do so.
See
Norfolk & W. Ry. v. State
,
In sum, as the en banc Fifth Circuit recognized, "[r]egulating the time a train can occupy a rail crossing impacts, in such areas as train speed, length and scheduling, the way a railroad operates its trains."
Franks
,
Since the statute regulates rail transportation, we turn to the State's next argument-that the ICCTA preempts only economic regulations.
2. ICCTA preemption is not limited to explicitly economic regulations.
Despite the blocked-crossing statute's direct regulatory effect, the State argues that the statute is not preempted because the ICCTA's core concern is economic regulation. Courts have struggled to find Congress's intent on that point.
See, e.g.
,
Elam
,
First, the line between economic and non-economic regulations "begins to blur" in many cases, including this one.
City of Auburn v. U.S. Gov't
,
Second-and more fundamentally-even if an economic focus were in Congress's mind, it is not in the ICCTA's text.
See
So since Indiana's blocked-crossing statute is a remedy that directly regulates rail operations, the ICCTA categorically preempts it.
See
Wedemeyer v. CSX Transp., Inc.
,
Despite preemption, the State may have federal recourse for blocked crossings. The STB's Rail Customer and Public Assistance Program "solves problems in ways ranging from a simple answer to a telephone inquiry to lengthy informal mediation efforts." 5 In 2017, that program addressed 32 issues related to railroad blocked crossings. 6 The STB has also addressed ongoing blocked-crossing disputes with formal decisions. 7
Since the ICCTA preempts the blocked-crossing statute, it is the end of the line-we *478 need not address preemption under the FRSA. The trial court is affirmed.
Conclusion
While the presumption against preemption applies in this railroad-crossing context, the ICCTA's preemption provision unambiguously preempts Indiana's blocked-crossing statute. We thus affirm summary judgment for Norfolk Southern.
David, Massa, Slaughter, and Goff, JJ., concur.
Indiana's state motto. Resolution of Mar. 2, 1937, ch. 312,
Indiana Dep't of Transportation, Indiana State Rail Plan , 25, 32, 69-70 (Oct. 2017).
"Grade crossings" here refers to highways and railroads intersecting on the same level (that is, "at grade") instead of one passing over the other via, for example, a tunnel or bridge.
Cf.
For this reason, we need not get sidetracked by incidental burdens on railroad operations,
see
Delaware
,
Surface Transportation Board, Rail Customer and Public Assistance , https://www.stb.gov/stb/rail/consumer_asst.html.
Surface Transportation Board, RCPA 2017 Full Year Statistics by Issue and Region , https://www.stb.gov/stb/docs/ConsumerAssistance/Full%20Year%20RCPA%202017%20Cases%20by%20Category-Region.pdf.
E.g. , CSX Transp. Inc. , STB Docket No. FD 35522, June 22, 2016, https://www.stb.gov/decisions/readingroom.nsf/9855c1fb354da09b85257f1f000b5f79/d3c0b4ed40a3bad585257fda0056d1e0?OpenDocument; Canadian Nat'l Ry. , STB Decision No. 26, Docket No. FD 35087, Dec. 17, 2010, https://www.stb.gov/decisions/readingroom.nsf/9855c1fb354da09b85257f1f000b5f79/b956b01d3225252a852578000050aee5?OpenDocument.
Reference
- Full Case Name
- STATE of Indiana, Appellant (Plaintiff) v. NORFOLK SOUTHERN RAILWAY COMPANY, Appellee (Defendant)
- Cited By
- 10 cases
- Status
- Published